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Last April, the Pennsylvania Department of Environmental Protection (PADEP), through the Environmental Quality Board (EQB), proposed changes to 25 Pa. Code § 91.33 to clarify the immediate notification requirements for unauthorized discharges that would cause or threaten pollution of waters of the Commonwealth, endanger downstream users, or damage property. Our Special Alert summarizing the proposed changes can be accessed here. Approximately 1,200 comments were submitted to the EQB on the proposed changes, including comments submitted by the Independent Regulatory Review Commission (IRRC). In general, industry commenters were mostly supportive of the proposed rule, although some commenters requested additional clarification to avoid unnecessary reporting. Other commenters expressed concern that the proposed approach would conflict with PADEP's obligations under The Clean Streams Law and Article I, Section 27 of the Pennsylvania Constitution. IRRC also sought clarification from PADEP on whether there is a compelling public interest that justifies the changes and the economic and fiscal impact of the regulation, as well as raising certain questions for PADEP's consideration as to how certain aspects of the regulations would function. PADEP is currently evaluating how to respond to the comments and changes to the proposed regulation are likely forthcoming. If substantive changes are made, the EQB will need to provide another opportunity for public comment, which would likely occur in 2026.
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